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Reiterating a now dominant viewpoint in many anti-nuclear circles, George Farebrother argues that nuclear weapons must be brought under the rule of law, a process which he believes will ultimately lead to nuclear weapons abolition.

The Law v Nuclear Weapons

George Farebrother

Sovereignty of Right: or of Law? The Rule of Law is the warp, if not the weft, of British society. Encounters with authority are defined by our citizenship and not by whether the police officer knew my father. It constrains us, but it also protects us. It is not to be violated lightly, want only, or unadvisedly. This is my instinctive understanding of the law. Iam naturally law-abiding and tend to do as the police tell me.
However, I am also a nuclear abolitionist. The continuing existence of nuclear weapons is an immediate and ominous threat to the world, and an insult to any imaginable system of morality. Being prepared to use them, with a full awareness of the devastation and suffering they would cause, is not just immoral: it flouts the very concept of morality.
Although opposing nuclear weapons means challenging British Government policy, we have the law on our side. However convoluted and self-serving, the law has a core of formalised and minimal morality. It pays attention to our basic sense of fairness - that we should not harm someone for the wrongdoing of another; and that being born in the wrong time and place is no reason to be held hostage for the interests of the powerful.

Shackles on the powerful

Evidence for the part of Sussex I live in shows that certain estates were "laid waste" during William the Conqueror's 1066 campaign. The properties belonged to Harold Godwinson, his foe. The peasants were the chattels of an enemy and therefore fair game for massacre and looting. We have left this medieval approach behind except, it seems, when it comes to inter-state nuclear terrorism.
However, international humanitarian law is steadily recognising that we are citizens, not state property. Thus it forbids the use of weapons which could never distinguish between military targets and civilians near them; cause disproportionate damage and unnecessary suffering; have long-lasting effects on the environment; and violate neutral states. These restrictions are inviolable - they apply in all circumstances, even if a country is on the verge of defeat. Being on the losing side is no defence for committing war crimes.
In a historic Advisory Opinion in 1996, the International Court of Justice re-stated these principles and confirmed that they apply to nuclear weapons. Moreover, the Court was unable to find any particular threat or use of nuclear weapons which could comply with international humanitarian law.

Trident: a resounding silence

So the legality of nuclear weapons - and any other weapon - is not decided by their nature, the fact that they depend on particle fusion or fission, but on their effects. Britain currently deploys 196 nuclear warheads on four Trident submarines. Each warhead is about eight times as powerful as the Hiroshima bomb which destroyed most of the city and exterminated about 100,000 people. Apart from killing and maiming by heat and blast on a huge scale, the use of even one Trident warhead would uniquely cause widespread genetic damage and indefinitely poison large areas of land with radioactive fallout.
The Government must therefore show that Trident could be used without the near-certainty of incinerating and irradiating enormous numbers of civilians as well as violating the other principles of international humanitarian law. In spite of persistent questioning over several years, the British Government has provided no satisfactory answer. Letters to ministers and questions in Parliament are met with bland assertions that British nuclear policy is legal. We are told that the Government has taken legal advice, but not what this advice consists of. We learn that computer simulations have been made of nuclear explosions - but not of how these would affect populations surrounding likely targets. With no evidence to the contrary we must assume that any use of Trident would be illegal, not to say criminal. I therefore have no moral qualms about direct action aimed at frustrating its operation.

Citizens in court

The Trident Ploughshares 2000 campaign says that since the British government has signally failed to implement its legal obligation to disarm Trident, concerned citizens must peacefully and responsibly do it themselves. Recently, three women were charged in Greenock Sheriff's Court in Scotland with malicious damage to a Trident-related system. They claimed that any government threatening to use Trident is engaged in a criminal conspiracy to carry out future crimes against humanity in contravention of international humanitarian law. The activists were therefore engaged in crime prevention. So far no court of law has fully upheld this point of view; but there are lawyers of repute who support the activists' defence.
In acquitting the three women in the Greenock case, the Sheriff allowed that the Trident Ploughshares view is a reasonable one and arguable in a court of law. She also ruled that there was no criminal intent in their action because it was based on a sincere belief that they were acting against a continuing criminal conspiracy to contravene international humanitarian law.
This was as far as the Greenock case went. It did not actually declare that Trident, or any other nuclear weapon, is unlawful. However, it led to considerable media discussion of the legal status of nuclear weapons and to the Government's referral of the case to the Scottish High Court for clarification of several points of law relating to the acquittal. The Government's questions studiously avoid any reference to the crucial issue - the legality of Trident. In the Greenock case, the defendants were allowed to call expert witnesses to testify on their behalf. Significantly the Prosecution produced no experts to argue the legality of Government policy. Non-violent direct action is relentlessly helping to expose the fact that the nuclear emperor has no legal clothes.

The limits of law

A letter to the March - May edition of PeaceNews attempts to undercut the international law approach by claiming that the law is irrelevant to issues of such gravity. "Should we understand that the people who make such a fuss about the supposed illegality of nuclear weapons would, if nuclear weapons were declared "legal" after all, just shrug their shoulders and say `Well, that's OK then', and go and campaign about something else instead?"
    A simple answer is that as international law - which is part of British domestic law - rightly supports our aims, then we should use it. But we can go further than that. Law is a rough and ready way of reconciling conflicting rights and interests and focusing our moral beliefs. The law relating to nuclear weapons, as interpreted by the World Court, is an attempt to reconcile the claims of a small but very powerful minority of states with those of the human beings who are the potential victims of nuclear weapons; and the bias is steadily swinging towards people rather than governments.
    But there is an even deeper factor. We are willing to work with an imperfect system on its own terms; but we would still place conscience above the law if the latter consistently fails us. The law is not an end in itself. Nor should it be a bundle of regulations serving the interests of the powerful. It is there to serve human needs and interests. Any interpretation of the law which allows the death of humanity is a self-contradiction; and even the powerful want their grandchildren to grow up.
    The willingness even to contemplate using nuclear weapons, thus makes a mockery of any tradition of law or morality. If you are willing to use nuclear weapons then it deprives you of the right to condemn terrorism or to ask other citizens to observe the rule of law.

A legal path to abolition

It follows that nuclear weapons must be brought under the rule of law. In practice, this means their elimination through an enforceable global treaty - as is happening with chemical and biological weapons. The legal pathway can take its place alongside political lobbying, media exposure, and moral persuasion.
It can also persuade deferential and cautious people like me to support non-violent direct action, and even to take part in it on occasion. It concentrates the minds of the people involved wonderfully, and gives a public forum for the facts about nuclear weapons and the moral arguments with which we counter them. In sum, it is a potent tool to change the characterisation of nuclear weapons from ultimate security asset and viable military option to unusable security problem with pariah status. Carried far enough it can bring political pressure on governments to bring their legal reasoning out into the open, thus exposing its emptiness.

George Farebrother works for the World Court Project.
World Court Project, 67 Summerheath Road, Hailsham, Sussex, Britain (tel/fax +44 1323 844269; email geowcpBritish@gn.apc.org; http://www.gn.apc.org/wcp). We intend to publish a response to this article in the following issue of Peace News.

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